Intermediate Scrutiny Pre-Intermediate Scrutiny

One of the most interesting aspects of my research into Justice Sutherland is the way in which the Court treated statutes that discriminated on the basis of sex in the 1920s and 1930s. Though I’m not an expert on the history of sex discrimination, my sense is that the standard account says that the Court did not take that issue seriously until the 1970s. I’m getting a different picture from reading the cases.

Consider Radice v. New York, which was written by Sutherland for a unanimous Court in 1924. Radice concerned a New York statute that barred women from working in most restaurants from 10PM to 6AM. This was basically an anti-crime measure, though it was also described as a public health measure. The Court upheld the statute and said the following:

“Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the Legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state Legislature here determined that night employment of the character specified was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression, and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination.”

Now this may sound surprising. After all, we are told that the Court in this era did not care about facts (only Brandeis did), and that they did not defer to legislative judgments about economic legislation (only Holmes and Brandeis did). But what about the Court’s holding a year earlier in Adkins (also written by Sutherland) holding that minimum wage laws for women were unconstitutional?

“The statute in the Adkins Case was a wage-fixing law, pure and simple. It had nothing to do with the hours or conditions of labor. We held that it exacted from the employer ‘an arbitrary payment for a purpose and upon a basis having no causal connection with the business, or the contract or the work’ of the employee; but, referring to the Muller Case we said that ‘the physical differences [between men and women] must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account.’”

One way to think about this distinction is that the Court was applying a form of intermediate scrutiny. In a case like Muller v. Oregonor Radice where there was (in the Court’s view) an ample factual record to support discrimination and where the regulation was related to physical differences between the sexes, then the statutes were upheld. With respect to wage laws, though, such a record was (in the Court’s view) was lacking or there was no sense that physical differences mattered. Anyway, it’s just a hypothesis.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

1 Response

The “not care about the facts” is the sort of stereotype that Prof. David Bernstein thrives in when rehabilitating Lochner.

The word “arbitrary” is common — like in Meyer v. Nebraska, the law is deemed “arbitrary and without reasonable relation to any end within the competency of the State.” Lochner speaks of an “unreasonable, unnecessary and arbitrary interference.”

I don’t know about “intermediate scrutiny,” but some shall we say rational basis with teeth standard (its flexibility not an invention of Anthony Kennedy) might be being apply. Prof. Victoria Nourse describes how this is a weaker test than the later fundamental right approach in her article on the “two Lochners.”